Anti-Porn Law Loses Out to First Amendment

By Erika Morphy
Mar 22, 2007 2:38 PM PT

A federal judge has overturned the Child Online Protection Act, or COPA, a 1998 law that was designed to keep children from viewing pornographic materials on the Internet. Although it was signed by President Clinton, it never took effect.

In 2004, the U.S. Supreme Court upheld a temporary injunction against the law based on the expectation that it would be found to violate free speech provisions of the Constitution.

COPA made it a crime for commercial Web site operators to let children access "harmful" material. Violators could be fined up to US$50,000 and imprisoned for up to six months.

U.S. District Court Judge Lowell Reed, who handed down the ruling in ACLU v. Gonzales, said that parents can protect their children using software filters and other means that wouldn't hamper adults' access to the Web sites.

"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," he said.

From There to Here

The case was brought before the United States District Court House for the Eastern District of Pennsylvania last fall. Other COPA-related legal skirmishes resulted in rulings from a federal district court in Philadelphia and a federal appeals court that found the online censorship law unconstitutional.

When the Supreme Court upheld a temporary ban against enforcing the law, it asked the Philadelphia court to determine whether new technology could affect the constitutionality of the statute. That request spawned a crisis of its own when the Department of Justice asked for data from several search engines. Only Google resisted complying with the DoJ request, on the basis that it would violate its trade secrets.

Not the End

This decision is hardly the end of the road for COPA, which has its fierce defenders.

"From this decision, it is likely to go to the Court of Appeals and then probably to the Supreme Court," Alan L. Friel, a counselor with Kaye Scholer, told the E-Commerce Times.

Even if the Supreme Court agrees with the lower court, it could leave the door open on findings relating to filtering effectiveness, age verification technology and the burdens associated with those operations, he said. That would provide an opening for Congress to readdress the language of the law.

"There are two competing interests here: the right of free speech and the compelling interest to protect children from sexually explicit material," noted Friel. "The question is whether the law is applying [the] least restrictive method of doing that."

With COPA, Congress took the approach that the burden of protecting children should fall on content providers and not on parents, he explained. That is opposite to the approach Congress has taken to sexually explicit material that appears on TV, which can be blocked by V-chip technology and other software.

"The heart of this case," Friel explained, "was that the burden was going in the wrong direction. The least restrictive method of protection and the most effective would be to put the burden on parents to employ filtering software or to limit their children's access to the Internet."

Who's Right?

Following its passage in 1998, COPA was blocked because it treated commercial entities unfairly under the First Amendment and was overly restrictive, noted John Pendleton, managing partner of Dwyer, Donovan and Pendleton.

"The statute only applied to commercial Web sites," he told the E-Commerce Times. "Its stated purpose was to protect children from 'harmful' information. It defined 'harmful' as nude pictures designed to appeal to sexual interest under 'contemporary community standards.'"

Shifting the obligation to determine what fit the definition to businesses was unfair, Pendleton said, because it was a subjective standard.

There is also the vague "I know it when I see it" definition of pornography, which might come into play in any determination of what constitutes "harmful" content, Pendleton said.

"What is 'harmful' varies from parent to parent and community to community," he pointed out.

An Unfair Advantage?

Another view suggests that Internet service providers and content providers already are being granted a favored status under U.S. law -- not only with respect to COPA, but also when it comes to other technology-related legislation.

"There have been a number of cases that have gone to great lengths to interpret COPA to protect ISPs, and this is just the most recent," Adam Voyles, a partner with Heard Robins, told the E-Commerce Times. Voyles is currently working on a case in which a minor was molested and pornographic pictures of him were uploaded on a Yahoo Group child pornographic Web site known as "Candyman."

Heard Robins maintains that Yahoo is civilly responsible to the child for violating, among other civil statutes and laws, a federal anti-child porn statute that not only imposes criminal penalties, but also grants civil remedies to victims.

"I am frankly shocked at what courts continue to do in the realm of the Internet in contradiction of other aspects of our lives," Voyles said. "For instance, courts routinely hold bars liable for serving minors liquor, or drugstores for selling them cigarettes."

The civil suit against Yahoo was dismissed under the under the Communications Decency Act, despite federal statutes that give victims civil recourse in such situations, Voyles said.

Impossible to Enforce

Voyles takes issue with the argument that parents are solely responsible for a child's online activities.

"You can do any search these days -- a search for 'Barbie,' for instance -- and come up with porn," he observed.

It is unrealistic to expect parents to be able to track all of their children's online activity, agreed Kevin Smith, vice president of sales, North America at LTU Technologies, a provider of image recognition software.

"There are a number of parental control tools available to parents ... but none are 100 percent accurate, and all require some level of human monitoring to be truly effective," he told the E-Commerce Times.

"This is very challenging," Smith concluded, "because short of using highly sophisticated computer forensic tools made available primarily to law enforcement, there really is not a good way to offer a truly sophisticated level of protection to children."